Part 1I: Balancing Constitutional Norms in the Rappler case
Antonio G.M. La Viña with Christian Laluna
CAGAYAN DE ORO CITY (MindaNews / 02 February) —The drafters of the 1987 Constitution acknowledged the fear of government regulating mass media (even for laudable purposes) becoming government regulating the free press. Even in radio and TV, the licensing was precisely only for the allocation of broadcast frequencies.
What Commissioner Blas Ople was trying to stress was that any registration of a press outfit with government entities, even for a laudable national public purpose, would have to be (a) strictly for legitimate purposes independent of content-based regulation, and (b) cannot amount to content-based regulation at all.
Here Ople spells out exactly the Securities and Exchange Commission’s (SEC) role in press activity: “strictly business purposes.” And to be fair, this is what the SEC ruled on: the strictly business purpose of establishing whether or not PDRs (Philippine Depositary Receipts) with conditionalities would equate to equity in Rappler Inc. It is admittedly within its jurisdiction. And as SEC argued: it had (strictly speaking) nothing to do with press freedom at all. Lawyers would call this content-neutral regulation.
Constitutional law students would be very familiar with the requirements of content-neutral public policy regulation: if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. (in Osmeña v. COMELEC, citing Adiong v. Comelec and US v. O’Brien).
Presuming regulation of corporate ownership is content-neutral regulation and not content-based regulation, that is the question now facing us, the higher courts in particular when the case is elevated for resolution of the issues, precisely to answer Ople’s fears.
Does SEC’s outright canceling of Rappler’s registration constitute an incident restriction on freedom of the press greater than that essential to the furtherance of the Constitutional “vision for society” behind the 100% Filipino mandate? Is it just merely dissolving the corporate juridical personality of Rappler, Inc., or a stop-the-press order?
We will not be the ones to answer the question here, we will not preempt the courts which may become involved. But clearly the Constitutional Commission agreed with Ople in his stressing that government be as much hands-off with the press as possible.
That makes Presidential Spokesman Harry Roque’s all-but-flippant retort to Rappler to continue operating by accrediting as bloggers dangerous. It gives the impression that government can decide who is and is not press, following a SEC dissolution of juridical personality. This is precisely Ople’s fear. The 100% mandate may be going too far if it ends up resulting to content-based or content-motivated regulation in succeeding actions.
Elsewhere in debating Filipinizing advertising, Commissioner Christian Monsod noted a similar fear that (perhaps not ironically, given that these provisions were discussed together) we now see facing Art. XVI Sec. 11 (1): “Our only apprehension is, Where do we draw the line?… A constitutional provision in this regard may be an opening to a vast or broad range of censorship that would even be counterproductive to our culture.”
Diversification of media ownership
We move to the third revelation, equally critical: diversification of media. It was the second paragraph of Art. XVI Sec. 11 (1) that generated more debate than the first: the Constitution frowning on monopolies in media. Herein the vision of the Framers is clear: one single entity controlling the levers of communications is dangerous, the solution is diversity in ownership. And indeed the original draft of the paragraph was a unquestionable blanket prohibition: “No one individual, family, or corporation can own more than one form of commercial mass media in a single market.”
Again, the devil in the details weighed heavily on deliberating the draft provision: what constituted a single market, national and regional? What about those firms which published daily, afternoon, and weekend papers out of the same press? How would one classify the use of relay stations to broadcast a program over long distances? And again, Ople’s admonition of government regulation in press operations, this time on the monopoly question: “But when you arrogate to a government the power to allocate markets especially with the authority of a constitutional provision, that is a signal to be wary and cautious.” As such, the approved provision as presently worded simply left it to Congress to figure out the details of operationalizing the Constitutional mandate.
This makes the second paragraph a “non self-executing” provision, meaning that it requires Congressional action for it to be given actionable life (unlike, say, the Bill of Rights or the right to a balanced ecology). Yet even this sort of Constitutional provision, though not self-executing, nonetheless provides important guidance to Congress in crafting the implementing law—and by doing so also conveys what the Framers intend the law to say on the matter, what the Constitution hopes to achieve.
And the Commission’s hopes was to “broaden ownership” (Comm. Braid’s sponsorship speech), “democratize media in the country” (Comm. Foz), such that “one body or one owner will not control media in such a way that it will monopolize the source of news” (Comm. Nieva).
While the monopoly prohibition per se is not self-executing, it can still be said that the Constitution frowns on any action that would have the effect of concentrating press ownership and activity, as opposed to diversifying it.
In fact, proposals such as encouraging employee ownership of media were either in the original draft, or had been raised in its debate. So was encouraging entrepreneurship—and the only difference between then and now is that today the Internet and a globalized investment world present new opportunities for such entrepreneurship, compared to the Commissioners’ discussions about sprouting rural-based newspapers everywhere.
That would weigh heavily on the notion of “shutting down Rappler,” or #RIPRappler as some people are wont to hashtag in social media. Any move which tends towards the scenario of “one body, one owner” defeats the Constitutional vision, if not its purpose. And the loss of any one mass media outfit, especially one duly recognized as such by its peers in the business (the only recognition that really matters for a journalistic enterprise other than the trust of the readership), whether or not they may agree with its editorial stances, is a step towards “one body, one owner.”
Whatever hair-splitting statutory construction may be given to the Constitution or the Records of the Commission on mass media or monopolies, that vision reigns, and any which would dim that vision may not prevail. Of course, the defense may be presented that the second paragraph is not self-executing, anyway. But whoever raises that defense does admit a rather dangerous thought.
A better constitutional balance
As a colleague of ours who has practiced in the area of foreign investments for many years observed to us, there is very rarely a bright line test as to whether a particular investment structure complies with Constitutional limitations. After all, the Constitution is intended to be a framework document; it is not intended to provide the minutiae. Sure, certain laws and jurisprudence provide guidance, but they do not always provide precedent. This is because, in the commercial/financial sphere, as in any other sphere, the “real world” always outpaces the law. Thus, while a particular legal provision might speak to one aspect of an investment structure that is being considered by a foreign investor, it may not necessarily give conclusive answers as to five, ten or any number of other aspects. While previous decisions of the Supreme Court may give some indication as to how a court might rule on an issue in the future, it might not necessarily serve as binding precedent because the situation ruled upon by the Court is rarely ever on “all fours” with the situation at hand.
In short, the question of whether an investment structure (especially, a sophisticated one) is compliant with foreign ownership restrictions rarely involves a mechanical application of the law. Rather, it requires making a judgment call in an area where the answers are hardly ever just black or white; oftentimes, they come in various shades of gray. In other words, the question of whether or not Omidyar’s investment in Rappler ‘s PDRs infringed upon the Constitution cannot be answered by a simple “yes” or “no”.
Under this context, it begs the question why the SEC imposed the most severe penalty of revocation of license (which, for juridical persons, is the equivalent of the death penalty) upon Rappler. If, in the exercise of its judgment, the SEC found certain aspects of the Omidyar PDRs to be inconsistent with Constitutional limitations, it could have very well ordered Rappler to restructure. Others have pointed out when PLDT’s capital structure was questioned before the Supreme Court in the case of Gamboa vs. Teves, the SEC subsequently gave PLDT the opportunity to modify its capital structure in order to comply with the Court’s decision.
In the Rappler case, the two constitutional norms of mass media ownership and freedom of the press necessarily converge. If the SEC decision had been issued under a different administration – one that has not, time and again, exhibited undisguised hostility and contempt towards Rappler and other media organizations – then we can concede that the question on the validity of the Omidyar PDRs can be looked at, purely and on a standalone basis, as a regulatory issue.
On the part of Rappler, even as it has mounted strong legal arguments to sustain the validity of its PDR with Omidyar, it is prudent to modify their instrument to reflect their original intent more clearly, that in fact neither ownership or control has been offered and granted to Omidyar.
We need Rapplers
While we cannot preempt the courts in deciding on the controversy presented before us now, our hope is that in looking at the Constitutional Convention’s hopes for Philippine media, the way through for all concerned—Rappler, the SEC, the Filipino press as a whole—can be lighted. While Art. XVI Sec. 11 (1) says “limited to Filipino citizens”, it clearly saw, through its debates, an increasingly global world, the dangers of concentration of media power in the hands of a few, and of government becoming too involved with the regulation of press activity. It is in that light that the SEC’s decision regarding Rappler Inc. must be read, and the future of Rappler. One thing is for certain, however: 100% notwithstanding, from reading the Record, the Constitution prefers a future where Rappler remains Rappler, that in fact the more Rapplers we have the better for society, and the press remains a press that is free.
(MindaViews is the opinion section of MindaNews. Tony La Viña of Cagayan de Oro City is former Dean and currently professor at Ateneo School of Government, as well as Constitutional Law professor of Xavier University, University of the Philippines College of Law, Polytechnic University of the Philippines College of Law, De La Salle University College of Law, San Beda Graduate School of Law, Lyceum College of Law and Pamantasan ng Lungsod ng Maynila Graduate School of Law. He was also a member of the government peace panel negotiating with the MILF from January to June 2010 following the aborted signing of the already initialed Memorandum of Agreement on Ancestral Domain in 2008. Christian Laluna is an Ateneo Law School graduate and a long-time collaborator of Prof. La Viña)